CITATION: Vidal v. Terejko, 2017 ONSC 5331
COURT FILE NO.: FS 16-373
DATE: 2017Sept8
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sheena Marie Sylvanna Vidal, Applicant
AND:
Benjamin James Terejko, Respondent
BEFORE: The Honourable R. J. Harper
COUNSEL: L. DeLong, Counsel, for the Applicant
B. Culp, Counsel, for the Respondent
HEARD: September 7, 2017
ENDORSEMENT
The Issues
[1] This is a motion by the Respondent father (Benjamin) for joint custody and primary care of the child Bo Winter Win Terejko, born February 9, 2015. The child is presently 2 years and 7 months old.
[2] The child has been in the primary residence with the Applicant mother (Sheena) since the parties separated on October 14, 2016.
Background
[3] Sheena and Benjamin were married on July 26, 2013. They separated on October 14, 2016. Benjamin has resided at his parents’ home since that date. He lives in a fully furnished basement apartment. His parents and 7 other siblings reside in that home. No further evidence was placed before the court about this residence or the neighborhood that the child would be living in.
[4] The child has resided with Sheena since the date of separation. At first Sheena and the child lived in the former matrimonial home. The mother moved to an apartment. No evidence was presented to the court about this residence or the neighborhood in which they live.
[5] There was an interim without prejudice order of Justice Thompson dated December 16, 2016. That order was granted in accordance with minutes of settlement of the parties. There was no reference in the order to custody of the child. The order only provided that the principle care of the child was to be with Sheena.
[6] The father has had access to the child per that order on Saturdays from 4 p.m. until Sundays at 4 p.m.
[7] Parties have followed that court order with no deviation for the past approximately 8 months.
[8] A case conference was held on January 25, 2017.
[9] Questioning was held March 3, 2017.
[10] At the case conference I ordered that the Office of the Children’s Lawyer (OCL) was to consider becoming involved in this matter. I also noted that I strongly recommended that the OCL conduct a section 112 investigation pursuant to the Courts of Justice Act. This will be expanded upon later in these reasons.
Events Since the OCL Order
[11] The relationship between the parents during their cohabitation was fraught with allegations made by Sheena of abuse by Benjamin and ongoing conflict.
[12] Sheena filed copies of Children’s Aid Society notes and records with her affidavit of June 2, 2017. Her confirmation filed for this motion requested that the judge read all of tab 2 that contained this June 2, 2017 affidavit. Those notes and records that were attached as exhibits were from March 29, 2015 through to January 24, 2017. I reviewed what amounted to in excess of 145 pages of CAS records. In addition, 4 witness statements of police constables with the Brantford Police Services that had been called to the parties’ home during the course of their cohabitation and multiple images of text messages.
[13] None of this evidence provided any independent evidence that Benjamin was abusive. All of the claims of abuse are self-reports from Sheena. Benjamin denies that he was abusive.
[14] The CAS has never confirmed any risk of or actual abuse. The police have never laid any charges. The vast majority of the documents the court was directed to read in the confirmation were not relevant to the issues before the court. Despite her allegations of abuse since 2015, Sheena agreed to access to Benjamin every Saturday through Sunday on an overnight basis. In the argument on this motion, counsel for the mother did not make any submissions with respect to the CAS or police notes and records. This was a complete waste of the courts time and increased to time and expense of this litigation.
Non Compliance with the OCL Order
[15] The evidence did indicate that the mother had psychiatric issues that she was dealing with. As a result of my concerns with respect to the lack of evidence relating to the living arrangements and the issues raised with respect to mental health concerns with the mother, as mentioned earlier, I ordered that the OCL be requested to become involved. This was consented to by the parties. My order dated January 25, 2017 among other things provided:
It is ordered that each party shall complete and forward a separate Intake Form for the Office of the Children’s Lawyer to that office within 14 days of this date.
[16] However, given my concerns, I also endorsed that “I strongly recommend a section 112 investigation be considered.”
[17] The Applicant, Sheena, refused to complete and forward the intake form as ordered. As a result, the OCL declined to become involved. In a letter dated March 1, 2017 the OCL confirmed that Sheena advised the OCL that she did not want their involvement.
[18] I am very concerned that Sheena did not comply with my order to complete and forward the intake forms required in order that the OCL could make an informed decision to become involved or not and by what means of involvement. My concerns are heightened by the fact that I specifically recommended a section 112 investigation. The OCL went to the extraordinary step of confirming that the mother did not file her forms as she told them she did not want to have the OCL do such an investigation.
[19] Sheena’s counsel, Ms. DeLong, made the surprising and shocking submission to me that her client was within her right to decline to file the form. She submitted that such an investigation that would delve into her past abuses was not necessary and her client had the right to refuse it. I made it clear that my order was not an option or an invitation by the court that could be rejected by her client. It was a court order that had to be complied with. In a flippant and cavalier response Ms. DeLong stated that this happens all the time.
[20] I find the submissions of counsel to be very disturbing. They demonstrate a lack of knowledge and respect for the court’s orders and the process of getting the OCL involved when a judge makes a determination that such input is needed. Refusal to submit the proper forms as ordered does not happen all the time. Counsel are or should be aware that they cannot suborn non-compliance with court orders.
[21] I find that the mother Sheena did not comply with my order because she did not want the section 112 investigation. I draw an adverse inference that the mother did not want a section 112 investigation as it would not be advantageous to her relative to the custodial issues. More importantly her conduct has placed the court in a position that it is lacking in material evidence that is necessary in order for the court to make a proper determination of what is in the best interest of this child.
[22] The mother’s mental health challenges may impact on her decision making. Her psychiatrist, Dr. Clark, opined in a letter dated March 26, 2017, that her diagnosis is:
Adjustment disorder with mixed anxious depressive features
Post-traumatic stress disorder – chronic
Panic disorder
Cannabis use disorder
[23] Dr. Clark stated that she was not nor could she do a parenting assessment. That would take a different skill set and a completely different process. She did, however, opine that her mental health diagnosis, in itself, would not prevent her from parenting. This state of the evidence is not satisfactory.
[24] Representations were made by counsel for the father that Sheena continues to work. He submitted that she earns approximately $1,000 per month. The Applicant mother works in a body rub parlor in Brampton at an institution called Steeles Royal Massage.
[25] The Respondent father submitted that she works under the name of Madison at her place of employment. He also submitted that she works most Thursdays. In addition to being out of the city on Thursdays, she has expressed an intention to go to school on weekends.
[26] Having regard to the work situation of the mother and the father’s ability to be flexible in his work schedule, the father wants to have his child in his care Wednesdays to Sundays to maximize the time with his daughter. He is available, willing and able. This submission changed after the mother’s counsel made her submissions
[27] When counsel for the mother made her submissions she, at first, submitted that her client worked at Steeles Royal Massage in Brampton, Ontario. She stated that she does not work Thursdays as represented by Mr. Culp. She stated that her client works at other times during the week at the body rub parlor in Brampton. However, she did not have information on the days or hours she works. She submitted that the court did not need to know that.
[28] No sooner did Ms. DeLong make those representations she changed them. After a brief chat with her client she then stated that her client no longer works at the body rub parlor. She now claims her licence expired in December of 2016 and this licence has not been renewed.
[29] The level of presentation of the evidence by counsel for the mother is very concerning. When asked to point out where the evidence was that described her client’s and the client’s child’s daily activities, counsel stated that the child was in day care from Monday to Friday from 9 a.m. to 3:30 p.m. and the child was with the mother at all other times. She argued that the court could infer that, from the evidence, she only needs a babysitter once per month.
[30] I find that the vast majority of the evidence of the mother related to mere allegations of past abuse that were not relevant to the present issues. Sadly lacking was any evidence about the child herself, her needs and how those needs are being met.
[31] Making a determination about the best interest of a child is one of the most important decisions that can be made by a judge. An order for custody shapes the life of a very young child and has long lasting impacts on their future wellbeing. I am not prepared to allow this matter to proceed in a manner by which a party can block the potential for a court to receive potential evidence the court has determined is necessary.
Order
[32] Both parties are to complete and forward the Intake Form to the OCL within 10 days. It is imperative that this be done. It is my strong recommendation that the OCL conduct a section 112 investigation. This order shall be served on the OCL forthwith. I am concerned about the impact of the mental health issues of the mother. I am not satisfied that Dr. Clark’s opinion that she does not feel that the mental health conditions prevent her ability to parent while at the same time she states that she is not in a position to do a parenting assessment. I am concerned that the psychiatrist also indicated that the mother is dealing with challenges as a result of abuse that she suffered at age 5. The psychiatrist goes on to state that the mother is in treatment. She does not detail that treatment. I am also concerned that the father and the mother’s evidence is lacking with respect to the living arrangements for the child and the child’s routine with each parent.
[33] The issue of custody and access is adjourned to be to Sept 28, 2017 at 10 a.m. At that time, I want an update on the status of the OCL involvement. I will then consider what order to make as an interim order with respect to custodial arrangements.
[34] Counsel are to submit bills of costs and be prepared to argue why an order for costs should not be made against counsel for the mother personally.
Harper, J.
Date: September 8, 2017